P. v. Ojeda
Filed 9/4/13 P. v. Ojeda CA6
California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH
APPELLATE DISTRICT
THE PEOPLE,
Plaintiff and
Respondent,
v.
RALPH CHARLES OJEDA,
Defendant and
Appellant.
H037819
(Santa Clara
County
Super. Ct.
No. C1076069)
After a
jury trial, defendant Ralph Ojeda was convicted of
shooting Hayward Brandon. On appeal, he
contends that he was deprived of a fair trial when the trial court refused to
declare a mistrial or exclude incriminating fingerprint evidence that was disclosed
after trial began. We will affirm the
judgment.
Defendant
has also filed a petition for habeas
corpus (H039769) arising from the same charges. We have ruled on that petition by separate
order filed this day.
Background
Hayward
Brandon supported himself by selling small amounts of marijuana, often from a
car in front of a fast-food restaurant.
On June 10, 2007, he
was selling from a rented Mitsubishi Galant.
On that day defendant asked his close friend, Daniel Lopez, to arrange a
marijuana purchase for him. Lopez was
then dating defendant's cousin, Sonia Macias.
Lopez let defendant use his cell phone to call Brandon
to arrange the transaction, and an uncle or cousin of either Sonia or defendant
gave Lopez and defendant a ride to a McDonald's restaurant near Alviso and Santa
Clara.
After
waiting for Brandon for five
minutes, Lopez went into the McDonald's to use the restroom. When he emerged, he crossed paths with
Brandon, who appeared to be in pain.
When Brandon collapsed in
front of him, Lopez quickly left the restaurant. The car he had arrived in was gone, as was Brandon's
car. Lopez called Macias, who arranged
for another of her cousins, Corrina Amarillas, to pick him up at a Carl's Jr.
nearby. Amarillas drove Lopez to a bush
where he had hidden some methamphetamine paraphernalia, and the two then went
to Alviso to pick up Macias. Lopez saw
that she was "hysterical, crying, [in] shock." Defendant, on the other hand, was "[k]ind
of quiet, mellow."
Lopez went
on to recount what defendant told him had happened while Lopez was inside the
McDonald's restroom. Defendant told
Lopez that he had gotten into the back seat of Brandon's
car, while Macias got into the front passenger seat. The transaction went "bad,"
however. Defendant believed that Brandon
had given him counterfeit money in change.
Defendant shot Brandon and
then took his money back, along with the marijuana, Brandon's
cell phone, and several boxes of shoes. Brandon
got out of the car; defendant jumped into the driver's seat and drove
away. Defendant later offered shoes to
Macias and to Lopez.
Lopez had
seen defendant with a nine-millimeter gun a couple of months before, and he was
carrying it earlier that day as well.
Lopez had not seen him bring the gun with him to the McDonald's,
however. Defendant told Lopez that he
had gotten rid of the gun. Lopez saw
defendant smash Brandon's cell
phone. Amarillas eventually drove Lopez
and Macias to Macias's house in San Jose.
Lopez later
learned from the newspaper that Brandon
had died. He called defendant to tell him about it, but otherwise the two did
not speak about the incident again.
Defendant's
truck was pulled over by San Jose
police on June 11, four days after the homicide. Lopez was a passenger, but he ran away
because he had drug paraphernalia on him.
Defendant was arrested when a small amount of marijuana was found on
him. In July, however, police arrested
Lopez and interviewed him about the Brandon
case. Lopez denied being in the
photographs taken from the McDonald's security video; he and defendant were
fellow gang members, which meant being loyal and "never snitching" to
authority figures. However, a few months
later, Lopez broke up with Macias and began a romantic relationship with
defendant's cousin, Sylvia Lujan. Theirs
was an unhappy relationship which deteriorated into thefts of each other's
property. Lujan described Lopez as a
"very heartless, lying, conniving thief" who was
"absolutely" not honest. When
they broke up, the friendship between Lopez and defendant fell apart.
In April
2010 Lopez learned that while in custody defendant had written notes requesting
that Lopez be attacked and violently removed from the gang. Lopez contacted the Santa
Clara police and offered to exchange information about
the Brandon homicide for placement
in the witness protection program. Lopez
described the events of June 7, 2011,
and testified for the prosecution at trial.
Richard
Armendariz also appeared at trial. He
had known defendant for 15 years and was uncomfortable testifying against
him. Once or twice while they were both
in county jail, defendant told Armendariz about the homicide. He said that he and "some dude"
were going to rob someone for his drugs, using a handgun. "Sonia" and a male cousin were with
him. Defendant named the McDonald's in Santa
Clara as the location of the "jacking" and
identified Brandon as the
victim. The two argued over the drugs
and defendant shot Brandon in the
upper abdominal area. Then he took the
victim's car and they all got away.
Defendant said he dropped the gun, which was a .22 or a 9-millimeter
handgun, in a creek behind some movie theaters in Santa
Clara.
Rick Souza,
a detective from the City of Santa Clara
police department, investigated the homicide.
At trial he described the trail of blood from the parking lot into the
McDonald's and the security video showing Lopez's "suspicious"
behavior, Brandon's path from the car into the restaurant, and the car being
driven away. Inside the car was a
9-millimeter shell casing. A
9-millimeter bullet was removed from Brandon's left shoulder at the
autopsy. No bloodstains or latent prints
were found in the inside of the car. The
outside surface did yield 40 areas of latent prints.
In late
July of 2007 the police questioned Macias, Lopez, Amarillas, defendant, and
Amarillas's husband, John Macias.
Defendant denied that he had ever met Brandon. In November 2007 Souza submitted the fingerprints
to AFIS, the Automated Fingerprint Identification System. He learned that there was no
"match" to the suspects, which led Souza to believe that defendant's
prints were not on Brandon's car. By the
time Souza retired from the police department in March 2010, no one had been charged
with Brandon's murder; it had "gone stale." It was not until May of 2010, after Lopez
came forward, that police arrested defendant for the crime.
After a
preliminary examination, defendant was accused by information with murder, in
violation of Penal Code section 187.
he had personally used a firearm (§ 12022.53, subds. (b), (c), and (d))
and that he had suffered a prior strike (assault with a deadly weapon), within
the meaning of the Three Strikes Law (§ 667.5, subd. (c); § 1192.7,
subd. (c)).
The parties
delivered their opening statements to the jury on September 26, 2011. The prosecutor told the jury that no DNA or
fingerprint evidence connected the suspects in the case. Defense counsel also said there was no
evidence that defendant was ever in the car:
"You won't hear about any fingerprints. You won't hear about any DNA." The prosecution, counsel added, had only the
word of Lopez and Armendariz, who were both "drug users, thieves,
liars."
On October
3, 2011, defendant moved for a mistrial.
Counsel said he had received a "bombshell" in the form of the
new evidence the prosecution had revealed only the previous week, during its
case in chief. Counsel felt
" 'blindsided.' Why?
Because our whole defense in this case was that the two prosecution
witnesses, two snitches, if you will, both the in-custody informant and the
out-of-custody informant, Lopez and Armendariz, were the sole case for the
prosecution against Mr. Ojeda."
Counsel pointed out that defendant's prints were already known, as he
had been arrested for marijuana possession the day after the homicide. There was no accusation of bad faith, no
attempt to hide evidence; it was, counsel believed, "just
overlooked. . . . [B]ut the effect is still the same."
Defense
counsel explained why the oversight had already prejudiced the defense: "And so when I come into court and we're
voir diring the jury, the whole purpose of my voir dire, as the Court is aware,
was witness credibility. I told
the . . . [C]ourt [sic]
that they're going to hear from witnesses that could be liars, drug addicts,
thieves, people who have lied to the police before. My whole focus and the focus of the defense
was to cast doubt upon the credibility of the prosecution witnesses that were
going to stand and accuse Mr. Ojeda. [¶] I never talked about physical
evidence. As far as I knew, there wasn't
any." In other words, he not only
had told the jurors that they would not hear any fingerprint or DNA evidence,
but had focused his cross-examination of witnesses on their credibility rather
than on defendant's prior contacts with the victim. And during voir dire, had he known there was
fingerprint evidence he would have inquired of bias, by asking prospective
jurors whether they would expect scientific or fingerprint evidence and how
they would feel about the defendant's guilt if there were such evidence. Now, however, his credibility was
"seriously impaired."
The court
proposed a remedy in the form of an instruction with CALCRIM No. 306. The court
suggested that because the prosecutor had also anticipated no fingerprint
evidence, her credibility was no better than defense counsel's, so defendant
was at no disadvantage. Counsel
requested "at the very least" a "preinstruction" or
admonition when the fingerprint testimony was to be introduced. The court agreed.
The court
next took up an alternative motion of the defense, to exclude the fingerprint
evidence under section 1054.5. Defense
counsel rejected the remedy of a continuance "because of the way the
discovery came out in the middle of trial."
The
prosecutor explained how the fingerprint match had been discovered. In June of 2007 the police had latent prints,
which were submitted to the central identification facility ("Central
ID") in San Jose to determine whether the victim's prints were
detected. Of the 40 latent prints, three
were of the victim. In November,
Sergeant Souza asked Central ID to "run the prints" through AFIS
against those of defendant and the other suspects. Sergeant Souza believed that if AFIS reported
no matches, "that was an exclusion.
That was a mistaken belief."
The
prosecutor had learned the previous week that it was a "very common
misconception" that if a person's known prints are in AFIS, a latent print
will "come up with a hit."
Thus, when Sergeant Souza misinterpreted the November 2007 results, he
erroneously reported the results as an exclusion of all the defendants. The prosecutor had likewise understood this
lack of identification to be an exclusion.
Apparently, she noted, so had defense counsel and others who had
received the same information.
It was not
until the evening of the first day of trial (September 26, 2011), while
preparing for the fingerprint experts' testimony, that the prosecutor realized
that the defendants' names were not identified as excluded in the reports in
front of her. Believing that she was
missing the exclusion report, the next day she asked Central ID to provide
it. There were no such reports. The prosecutor asked for confirmation that
Central ID had actually excluded the defendants, but the employee on duty
informed her that no comparison had been requested, and therefore no exclusions
existed.
The
prosecutor immediately had the police department submit the prints of
defendant, Macias, and Lopez to Central ID.
The following day, the third day of trial, she informed defense counsel
what had been happening. Midday on the
fourth day of trial (September 29), the prosecutor learned that one fingerprint
matched defendant, and she immediately informed defense counsel of this
fact. Counsel for both parties received
copies of all the prints and reports, as did the defense expert.
The
prosecutor acknowledged that "this is something . . . [she] should have
caught earlier," but, she noted, she disclosed the new information within
hours of receiving it. She agreed with
the court that there was no issue of credibility because she too had told the
jury that there was no fingerprint evidence.
In the prosecutor's view, "We don't stop investigations in cases
just because a jury is sworn. If
something comes up or if something is missed . . . , it's not
uncommon for investigation to proceed during a trial and for evidence to come
forth in the middle of trial." The
prosecutor disagreed with the court's suggestion that "discovery doesn't
mean just known evidence but should have known."
Before the
introduction of the fingerprint evidence on October 5, 2011, the court read to
the jury the following stipulation by the parties: "The defense and the prosecution
stipulate that at opening statement on September 26, 2011, both parties told
the jury that there would be no fingerprint evidence presented at this trial
because that is what they believed to be true.
[¶] On the evening of Tuesday,
September 27th, 2011, the prosecution discovered that a comparison of the
latent prints from the victim's car and the known prints of Ralph Ojeda had not
actually been performed. The prosecution
notified the defense of this fact on the morning of Wednesday, September 28th,
2011. [¶] In the days following this disclosure,
fingerprint experts of both sides have engaged in this omitted analysis. The
results of this examination which has just now come to light will now be put
into evidence."
The court
then instructed the jurors with language from CALJIC No. 2.28, which
advised them that the prosecution's untimely disclosure had been unjustified,
but that the new evidence would nevertheless be admitted, and that the weight
and significance of the evidence was for them to determine.
John Bourke
and Sergeant Souza were then recalled to testify about latent print number 18,
a partial print lifted from the surface of the car in front of the rear
passenger's door. Bourke explained that
it could not be determined when the print was left there. Souza testified that in November 2007 he
submitted the latent prints to the central identification facility for
reexamination. He inferred from the
results that no match to defendant had been found. It was only the prior week, during trial,
that he learned that defendant's prints had not actually been excluded.
Just before
both parties rested, Lopez was recalled to the stand. He acknowledged having introduced defendant
to Brandon before the day of the crime.
On that occasion Brandon was driving an older Jeep, not the Galant. Defendant was there with Brandon and Lopez,
and possibly with Macias, on another occasion, but Lopez did not recall what
kind of car Brandon was driving at that time.
The court
again read a modified version of CALJIC No. 2.28 during its final instructions
before the jury began its deliberations.
The prosecutor called attention to the fingerprint during opening and
closing arguments to the jury. Defense
counsel primarily focused his argument on the lack of credibility and bad
character of both Lopez and Armendariz.
He acknowledged the fingerprint evidence but directed the jurors'
attention to the absence of prints on any surface inside the car. Counsel also
observed that there were two reasonable inferences from the circumstantial
evidence of the fingerprint, one of which was "that he put his fingerprint
on the rear passenger door at some other time when he was at Mr. Brandon's
car." He emphasized to the jurors
that because this reasonable inference pointed to innocence, it must be
accepted.
The jury
found defendant guilty of murder, and it found true the allegation that he had
personally used a firearm within the meaning of section 12022.53, subdivisions
(b), (c), and (d). The court sentenced
defendant to 75 years to life, and defendant brought this timely appeal.
Discussion
The sole
issue on appeal is whether the court's admission of the fingerprint evidence
was an abuse of discretion and deprived defendant of due process and effective
assistance of counsel. We conclude that
in the circumstances presented, no error occurred.
Both
parties point to section 1054 et seq., which sets forth the exclusive rules of
discovery in criminal cases and prescribes the possible remedies for discovery
violations. Section 1054.1, subdivision
(f), requires the prosecutor to disclose to the defense reports of experts,
"including any reports or statements of experts made in conjunction with
the case, including the results of . . . scientific tests, experiments,
or comparisons which the prosecutor intends to offer in evidence." Such disclosure must be made at least 30 days
before trial, but "[i]f the material and information becomes known to, or
comes into the possession of, a party within 30 days of trial, disclosure shall
be made immediately, unless good cause is shown." (§ 1054.7.)
Section
1054.5, subdivision (b), permits a trial court to "make any order
necessary to enforce the provisions of this chapter, including, but not limited
to, immediate disclosure, contempt proceedings, delaying or prohibiting the
testimony of a witness or the presentation of real evidence, continuance of the
matter, or any other lawful order.
Further, the court may advise the jury of any failure or refusal to
disclose and of any untimely disclosure."
Here the
prosecutor disclosed the new fingerprint evidence as soon as she received
it. Based on this fact, the People
assert that no violation of section 1054.7 occurred. As defendant points out, however, the trial
court found otherwise, by ruling that the People should have properly analyzed
the evidence earlier, and it instructed the jury accordingly. We need not decide whether we agree with the
trial judge that a discovery violation actually occurred, because the only
question presented to us is whether the instruction with CALJIC No. 2.28
was an adequate remedy.
Defendant
acknowledges that the trial court had broad discretion in selecting a remedy
for the prosecution's discovery delay. (
951 [courts have broad discretion in determining appropriate sanction for
discovery abuse]; see also People v.
Ayala (2000) 23 Cal.4th 225, 299 [rulings on discovery matters reviewed
under an abuse of discretion standard].)
He contends, however, that instead of merely giving an instruction,
which could not have cured the harm, the court instead should have either
granted a mistrial or excluded the evidence.
Under
section 1054.5, subdivision (c), the court was not authorized to prohibit
evidence regarding the new fingerprint analysis unless "all other
sanctions [had] been exhausted."
"Even where the prosecution acts willfully and in bad faith --
which is contrary to the trial court's finding in this case -- 'the extreme
sanction of dismissal is rarely appropriate unless a defendant has established
prejudice by the failure of the People to comply with the discovery order
[citation] and the prejudice cannot be otherwise cured [citation]; lesser
sanctions must be utilized by the trial court, unless the effect of the prosecution's
conduct is such that it deprives defendant of the right to a fair
trial.' " (
773, 792-793 (fn. omitted), quoting Mendibles
v. Superior Court (1984) 162 Cal.App.3d 1191, 1198.) This provision reflects a legislative concern
for " 'potential prejudice to the truth-determining function of the
trial process.' " (
1744, 1757, quoting Taylor v. Illinois
(1988) 484 U.S. 400, 415.)
Defendant's
argument as to the mistrial ruling is that the court did not understand that it
had this option, believing instead that mistrial is not a proper remedy for
untimely discovery unless exclusion would be insufficient. Our reading of the trial transcript, however,
reveals no misunderstanding of the law.
The court only decided that in the circumstances presented, a mistrial
would be improper because other viable remedies were available. That conclusion was entirely consistent with
section 1054.5.
We see no
abuse of discretion or due process violation in selecting admonitions to the
jury as a remedy for the prosecution's missteps. As in People
v. Jenkins, supra, 22 Cal.4th at page 952, here defendant has failed to
establish that a prosecutor's delay in obtaining and disclosing inculpatory
evidence "requires a particular sanction as a matter of due
process." Nor can the admission of
the fingerprint evidence, tempered by the jury admonitions, be said to have
offended due process by rendering the trial fundamentally unfair. (See People
v. Partida (2005) 37 Cal.4th 428, 439; People
v. Covarrubias (2011) 202 Cal.App.4th 1, 20.) The trial court followed the statutory
procedures for remedying discovery violations and selected one that
accommodated both fairness to the defendant and the "truth-determining
function of the trial process." (
Cal.App.4th at pp. 1757–1758.) The court
ameliorated any potential unfavorable impression of the defense and thus
accommodated defense counsel's concern by repeatedly advising the jury that it
was the prosecution's failure to obtain a timely analysis of the fingerprints
that led to the new evidence contradicting both parties' initial positions at
trial. Defense counsel could have asked for
a continuance, but he affirmatively rejected that opportunity—on the theory
that his credibility with the jurors had been irreversibly compromised because
he had already told them in his opening statement that there would be no
fingerprint evidence.
name="_ftnref3" title="">[3] He did not suggest to the trial court that a
continuance would have been useless in challenging the accuracy and reliability
of the new evidence or otherwise explaining it.
Defendant
now contends that "[s]ince the premise of the entire defense case proved
to be false, there was no longer a defense case." While arguing that a timely disclosure would
have eliminated his defense of
innocence based on the lack of physical evidence, he nonetheless does not
suggest what alternative defense could or would have been substituted to
achieve a more favorable outcome. (Cf.
282 [without elaboration, "generalized statements" that timely
disclosure "would have enabled [defense] counsel to adjust his theory of
the case" are insufficient to demonstrate prejudice].)
Clearly
defendant was surprised by the new disclosure.
But absent ambush by the prosecution (which clearly was not present
here), "surprises may still sometimes happen at trial." (People
v. Bell (1998) 61 Cal.App.4th 282, 291.)
The prosecutor complied with her statutory duty by informing defense
counsel of her efforts to obtain a re-examination of the fingerprints and then
immediately informing him of the result.
Defendant elected not to secure a continuance in order to examine the
new evidence and refute its reliability through additional experts and
cross-examination of prosecution witnesses relating to the test procedure and
results. Instead, he chose to focus
primarily on the same strategy he adverted to in his opening statement, by
attacking the credibility of Lopez and Armendariz. He nonetheless did emphasize to the jury that
the fingerprint could have been left on the car on a prior occasion, and there
was no way to know how long it had been there.
Defendant fails to convince us that the trial was infected by such
"substantial and irremediable" prejudice that the only appropriate
remedy was to exclude the evidence or declare a mistrial. (People
v. Gonzales, supra, 22
Cal.App.4th at p. 1757.) Accordingly, we
see no abuse of discretion or unfairness in the circumstances presented.
Nor did the
disclosure delay result in ineffective assistance of counsel. Defendant did not complain to the trial court
that the new evidence had irreparably damaged his ability to present a defense;
he only claimed that it damaged counsel's credibility by contradicting his
position in opening statements. This
argument was vitiated by the admonitions given to the jury. There is no indication on the record before
us that the defense strategy counsel chose was impaired beyond what he could
have achieved through the additional preparation a continuance would have
afforded him. He was nonetheless able to
examine the evidence, cross-examine prosecution witnesses who had been involved
in the processing of the fingerprints, and argue to the jury that the evidence
was unreliable. The chief problem for
the defense was not that the prosecutor's conduct or the court's remedy was
prejudicial, but that the new evidence was inculpatory. But that fact alone could not have justified
its exclusion or compelled a declaration of mistrial. "The integrity of the adversary process,
which depends both on the presentation of reliable evidence and the rejection
of unreliable evidence, the interest in the fair and efficient administration
of justice, and the potential prejudice to the truth-determining function of
the trial process must also weigh in the balance." (Taylor
v. Illinois, supra, 484 U.S. at pp. 414–415.)
Disposition
The
judgment is affirmed.
_________________________________
ELIA,
J.
WE CONCUR:
____________________________
RUSHING, P. J.
____________________________
PREMO, J.
All further statutory references are to the Penal Code.
The instruction as given stated:
"The prosecution and the defense are required to disclose to each
other before trial the evidence each intends to present at trial so as to
promote the ascertainment of the truth, save the Court time, and avoid any
surprise which may arise during the course of the trial. Delay in disclosure of evidence may deny a
party sufficient opportunity to subpoena necessary witnesses or to produce
evidence which may exist to rebut the [non-complying] party's evidence. [¶]
Disclosure of evidence are [sic]
required to be made at least 30 days in advance of trial. Any new evidence discovered within 30 days of
trial must be disclosed immediately.
[¶] In this case, the People
failed to timely analyze the following evidence: latent fingerprint evidence
from the victim's car. Although the
People's failure to timely disclose evidence was without lawful justification,
the Court has, under the law, permitted the production of this evidence during
trial. [¶] The weight and significance of any delayed
analysis are matters for your consideration.
However, you should consider whether . . . the untimely
disclosure of the latent print analysis pertains to a fact of importance,
something trivial, or subject matter already established by other credible
evidence."
